Doctor's duty to warn extends to patients, not third parties.

A woman can sue a doctor because he didn't warn his patient not to drive while taking certain drugs; however, she cannot sue him for failing to consider the foreseeable harm to her when deciding whether to prescribe the drugs in the first place. So ruled the Tennessee Supreme Court, in a split decision that could have far-reaching effects the next time it hears a case involving the duty to warn third parties. (Burroughs v. Magee, No. W2001-00238-SC-R11-CV, 2003 WL 22247369 (Tenn. Oct. 1,2003).)

In 1997, Judy Burroughs's car was hit by a vehicle driven by Roger Hostetler when he van a red light. She was injured, and her husband was killed. Hostetler had been taking the prescription drugs Soma and Esgic-Plus, which have a powerful barbiturate effect when combined.

Burroughs sued Hostetler's doctor, Robert Magee, for his failure to warn Hostetler about the medications' potentially hazardous effects on driving and for failing in his "duty of care" to her--as a member of the driving public--when deciding whether to prescribe the drugs. Because Hostetler was a suspected drug abuser and a big-rig truck driver, she argued, he posed a clearly foreseeable danger to the public.

Hostetler's medical file included a note from his previous doctor stating that the doctor had refused to prescribe the same medications to Hostetler on three separate occasions because "I think this has reached the stage of substance abuse." In his testimony, Dr. Magee admitted that he had not read the note. Nevertheless, the trial court granted Magee's motion for summary judgment.

The appeals court then reversed in part and affirmed in part, reinstating only the claim for failure to warn Hostetler. The court ruled that expanding the doctor's liability to include harm to others besides Hostetler did not alter his original duty to his patient and did not place an undue burden on the physician. The Tennessee Supreme Court affirmed that conclusion and remanded the case for further proceedings.

Both Tennessee courts cited the Indiana Supreme Court's decision in Webb v. Jarvis: "Were we to impose a duty on a physician to consider the risk of harm to third persons before prescribing medication to a patient, we would be forcing the physician to weigh the welfare of unknown persons against the welfare of his patient. Such an imposition is unacceptable." (575 N.E.2d992 (Ind. 1991).)

Houston Gordon of Covington, Tennessee, who represented Burroughs, called the ruling "a terrible decision."

"There's not a nickel's worth of difference between the two [claims] ," the lawyer said. "It's not a duty issue, it's a foreseeability issue, and if the doctor had just adhered to standard duty of care required, the accident would not have happened."

Brian Dunigan, a personal injury lawyer in Goodlettsville, also was puzzled by the court's reasoning. "I just don't see the distinction between the claims," he said. "Simply warning a patient, in this situation, is not doing that much to protect the patient's potential victims. That's clearly not enough to avert foreseeable harm."

Gordon described the court's decision as a capitulation to the state's medical community. The Tennessee Medical Association filed an amicus brief on behalf of Magee, emphasizing the public policy implications of the case.

"Doctors love this decision," said Gordon. "They are immunized now in the area of prescription drugs."

Dunigan predicted that the issue will arise next in a mental-health-related case, since courts in those cases tend to be "very protective of third parties."

For his part, Gordon is taking his case back to the trial level. "We got half a loaf," he said. "We can win with half a loaf."